Land and Environment Court New South Wales Medium Neutral Citation: The Orchard Ozland Austral Pty Ltd v Liverpool City Council [2022] NSWLEC 1679 Hearing dates: Conciliation conference held on 16 November 2022 Date of orders: 06 December 2022 Decision date: 06 December 2022 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) The appeal is upheld. (2) Development Application DA-115/2022, as amended, for a staged development to retain the existing dwelling and create a residue lot for further subdivision into 22 Torrens title lots including demolition of some of the existing structures, removal of trees, earthworks, construction of new roads, drainage and provision of services at Lot 724 on DP 2475, also known as 283 Twelfth Avenue, Austral, and also relies on civil works on Lot 723 DP 2475, also known as 273 Twelfth Avenue, Austral, is determined by the grant of consent, subject to the conditions in 'Annexure A'. Catchwords: DEVELOPMENT APPLICATION – Torrens title subdivision – conciliation conference conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 4.47, 8.7 Environmental Planning and Assessment Regulation 2000, cll 49, 55 Land and Environment Court Act 1979, s 34 Rural Fires Act 1997, s 100B State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9 State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Appendix 4 cl 2.2 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Texts Cited: Austral & Leppington North Precinct Development Control Plan 2014 Category: Principal judgment Parties: The Orchard Ozland Austral Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) C Campbell (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Liverpool City Council (Respondent) File Number(s): 2022/210116 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA-115/2022, which as amended for a staged development seeks to retain the existing dwelling, and create a residue lot for further subdivision into 22 Torrens title lots including demolition of some of the existing structures, removal of trees, earthworks, construction of new roads, drainage and provision of services on Lot 724 on DP 2475, also known as 283 Twelfth Avenue, Austral, and also relies on civil works on Lot 723 DP 2475, also known as 273 Twelfth Avenue, Austral (together the site). Background 1. The DA was lodged with Council on 3 February 2022. The original DA was notified to residents, with no submissions received. The DA was referred to the relevant authorities, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the EPA Act. 3. The Council agreed for the applicant to amend the plans and documents that support the DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). 4. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties' request, commenced without a site view and held via Microsoft Teams. 5. Based on the amended application and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The agreed position of the parties is for the Court to grant consent to the amended Development Application DA-115/2022, with conditions. 6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to ss 4.14 and 4.15, and other relevant jurisdictional requirements, to grant consent to DA-115/2022, subject to conditions in Annexure 'A'. Jurisdictional prerequisites 1. The site is partially mapped as bushfire prone land on Council's online mapping. The NSW Rural Fire Service, as the relevant Bush Fire Safety Authority, pursuant to s 100B of the Rural Fires Act 1997, has assessed the DA and issued General Terms of Approval (GTA's), which are incorporated into the agreed conditions of consent. I am satisfied the requirements of the s 4.14 of the EPA Act are addressed. 2. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically addressed: 1. State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (SEPP Precincts): 1. Pursuant to Appendix 4, cl 2.2 of the SEPP Precincts, the site is located within land zoned as R2 Low Density Residential. The proposed subdivision and associated works, as described to the Court, is permissible with consent. The amended DA is supported by relevant documents, together with agreed conditions of consent which sufficiently address all the relevant objectives, aims, standards and requirements of the SEPP Precincts. 1. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity): 1. The site is located within the Hawkesbury-Nepean River catchment, therefore subject to the provisions of the SEPP Biodiversity. The amended DA, together with agreed conditions of consent satisfies the relevant provisions of the SEPP Biodiversity, and specifically those in Ch 9. 1. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience): 1. Pursuant to the SEPP Resilience, the contamination status of the site must be considered, prior to grant of consent. Based on the supporting documents to the amended DA, the Court is satisfied that the applicant has provided sufficient evidence, including a combined Stage 1 Preliminary, Stage 2 Detailed Site Investigation, and a Remedial Action Plan, prepared by Sydney Environmental Group, which together with the agreed conditions of consent, address the relevant requirements of s 4.6 of the SEPP Resilience. 1. Austral & Leppington North Precinct Development Control Plan 2014 (DCP): 1. The original DA was publicly notified in accordance with the DCP, with no submissions received. The relevant requirements of the DCP are generally complied with, based on the amended plans and supporting documents to the amended DA, and described in the agreed conditions of consent. 1. The agreed conditions of this consent adopt the GTA's as provided by relevant authorities, pursuant to s 4.47 of the EPA Act. 2. Pursuant to cl 49 of the EPA Reg, the applicant has satisfied the Court with the provision of consent from all landowners relevant to the amended DA. Grant of consent 1. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought. 2. The Council has undertaken the appropriate merit assessment of the proposed subdivision and works. The Court is advised that the issues raised in contention have been addressed by the amendments made to the application. 3. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA-115/2022 can be granted consent, as it satisfies the relevant requirements of the EPA Act. 4. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 5. The Court notes that: 1. Liverpool City Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application DA-115/2022. 2. The amended application was lodged on the NSW Planning Portal on 16 November 2022. 3. The amended application subsequently filed with the Court is consistent with the supporting documents uploaded to the NSW Planning Portal. 1. The Court orders that: 1. The appeal is upheld. 2. Development Application DA-115/2022, as amended, for a staged development to retain the existing dwelling and create a residue lot for further subdivision into 22 Torrens title lots including demolition of some of the existing structures, removal of trees, earthworks, construction of new roads, drainage and provision of services at Lot 724 on DP 2475, also known as 283 Twelfth Avenue, Austral, and also relies on civil works on Lot 723 DP 2475, also known as 273 Twelfth Avenue, Austral, is determined by the grant of consent, subject to the conditions in 'Annexure A'. Sarah Bish Commissioner of the Court ********** Annexure A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2022